October 3, 2011

For anyone who might worry that federal prosecutors may waste too much time and federal taxpayer monies pursuing local crimes that are best handled by local governments, I am pleased to be able to report on a new Justice Department press release that highlights that the feds do sometimes devote their limited time and precious federal taxpayer monies to pursuing big-time international criminals. Specifically, as detailed in this new DOJ press release titled "Virginia Man Pleads Guilty to Trafficking in Illegally-Imported Sperm Whale Teeth," we can all sleep sounder knowing that the feds keep working hard to keep us all safe from evil persons who illegally traffic in the pearly whites of huge marine mammals:

Richard M. Ertel, of Spotsylvania, Va., pleaded guilty today in U.S. District Court in Richmond, Va., to the illegal importation and illegal trafficking of sperm whale teeth, the Department of Justice announced.

Ertel pleaded guilty to two felony violations of the Lacey Act for trading in endangered marine mammal parts. Sperm whales are classified as “endangered” under the Endangered Species Act (ESA), and are listed on Appendix I of the Convention on International Trade in Endangered Species of Wild Fauna and Flora. It is illegal to import parts of sperm whale teeth into the United States without the requisite permits and certifications, and without declaring the merchandise at the time of importation to U.S. Customs and the U.S. Fish and Wildlife Service.

Sperm whale teeth are commonly used for scrimshaw and can fetch large sums of money from collectors and tourists. Scrimshaw, as defined by the ESA, is any art form which involves the substantial etching or engraving of designs upon, or the substantial carving of figures, patterns or designs from, any bone or tooth of any whale, dolphin or porpoise.

As part of the plea, Ertel admitted that from April 2002 to June 2007, he was in the business of buying and selling sperm whale teeth that he purchased from sources in the Ukraine, and then sold to customers in Virginia and elsewhere in the United States. He admitted to conducting much of his business via the Internet.

As a result of the felony conviction, Ertel could be sentenced up to five years in prison and fined up to $250,000 for each count. Sentencing is scheduled for Jan. 9, 2012.

Gosh knows that, after getting this new DOJ press release via e-mail, I will be sleeping much sounder tonight. But I am now concerned that looming federal budget cuts might undermine the important progress obviously being made in the war on scrimshaw. I sure hope that the sperm whale community can and will be actively lobbying members of Congress to try to preserve and expand the law enforcement funds needed to ensure that this small population of large victims no longer has to live in fear.

Comments

Seen on Doug B's bumper sticker: "Nuke the Whales."

Posted by: federalist | Oct 3, 2011 5:52:51 PM

This is a cheap shot. Yes, scrimshaw doesn't hurt us. But illegal whaling that often supplies the scrimshaw trade threatens whales with extinction. To me this prosecution seems more justified than the average illegal reentry case.

-Defense Attorney

Posted by: Emily | Oct 3, 2011 7:39:38 PM

A bit harsh, Doug. How do you protect endangered species if you don't prosecute those who profit from them? Five years of trafficking is not a casual mistake.

If you said they should be going after Wall St fraud more aggressively rather than this, I might be more sympathetic to your point.

I agree with the sentiments expressed by Emily and Paul, and federalist's comment made me LOL.

Either we're going to have an Endangered Spiecies Act or not. If we are, it should be enforced. I'm all for capitalism, but capitalism that threatens extinction to a spiecies of animal is taking it too far. Once they're extinct, they don't come back.

Posted by: Bill Otis | Oct 3, 2011 9:13:42 PM

A sperm whale beaches itself, and is dead. Can I pull out its teeth and sell them, with the disclaimer, no whale was harmed for this tooth? Or would it be analogous to the downloading of child porn produced in the 1920's, still actionable to the fullest extent of the law?

Is there any evidence this guy killed a sperm whale? His crime was not filling out paperwork...

Posted by: Doug B. | Oct 4, 2011 8:08:48 AM

Apparently, Doug has never heard of how the ivory trade is suppressed.

Posted by: federalist | Oct 4, 2011 8:27:15 AM

Doug --

I know of no evidence the defendant killed anything, but that's irrelevant. When you make a profit from trading in whale teeth, you're contrubuting to the financial incentive to kill whales, which means that more of them will be killed.

The best way to stop their killing is to drain the profit from it, and that, ultimately, is what this prosecutuion is about.

Is it as important as stopping the meth trade? No, not for my money. But a given prosecution doesn't have to be the most important use of money to make it a worthwhile use of money.

Posted by: Bill Otis | Oct 4, 2011 8:50:39 AM

Apparently, federalist thinks this guy is one of the dangerous criminals presenting a huge threat to public safety. I wonder if someone will soon launch an investigation as to how this menace got away with his 5-year crime spree and only four years later got brought to justice.

Also, by latest estimation, there are over 1 million sperm whales and they have no natural predators. I do not think we need to worry much about sperm whale extinction these days.

Meanwhile, it is telling that the defense bar, which usually will complain loudly about prosecutorial toughness, here promotes/defends a big-government criminal justice system when it is uniquely sympathetic to the victim (here a whale). Maybe if more victims of violent crimes claimed to be sperm whales there would be more support for tough sentences among the left.

Key point, gang: we can (and in my view should) regulate this "offense" through civil sanctions. Bring a civil action and require huge fines for this kind of illegal trade. Just do not waste limited federal tax dollars to provide more federal crime fighters and more federal prison cells.

Posted by: Doug B. | Oct 4, 2011 9:02:02 AM

Doug, that I support sending people to prison for violent crime does not mean I don't support sending people to jail for other crimes. Now I grant you that the Lacey Act is problematically enforced. But people who illegally kill sperm whales and those who provide a market for it may not be so discriminating.

Of course, once again, Doug, you lead with your chin. Saying this guy is being convicted of a paperwork violation ignores, as Bill points out, how a trade in contraband is stamped out. That type of ignorance, obvious, from your post and subsequent comments, to be blunt, beclowns you.

Posted by: federalist | Oct 4, 2011 9:36:18 AM

Have any solid evidence, federalist, of CRIMINAL law being successful and cost-effective in stamping out trade in contraband? Again, I am not endorsing mass killing of whales --- although given the huge expense and limited economic payoff of whale-hunting in modern times, I am not sure I fully understand why the feds should be seriously worried about whale killing in 2011 --- but I am encouraging serious questioning about whether a BROKE federal government should still be prioritizing CRIMINAL enforcement of laws concerning whale teeth.

In the end, I see all the comments to this post shows why our criminal justice system is so huge and wasteful. The "tough on crime" right-wing crowd --- Bill Otis and federalist --- readily defendant federal CRIMINAL prosecutions to protect the whales, although I would bet they would be quick to attack any EPA regulations that would restrict oil drilling to protect these same whales. Meanwhile, the lefty defense bar is quick to defend a "tough on crime" federal CRIMINAL prosecution of a regulatory economic offense principally because it is uniquely sympathetic to this kind of victim. Meanwhile, the country is going broke because anyone who questions whether this is now a good use of federal tax dollars gets attacked from both sides.

Everyone's embrace from the big-government criminal justice status quo is what strikes me as true ignorance, federalist, because it too readily accepts the notion that this CRIMINAL prosecution is justifiable and cost-effective when there is every reason to believe, if one does even a little research, that non-criminal laws are more than adequate to "save the whales." Only true ignorance suggests that the only options are extinct whales or excessive government expenses to stop the trade in whale's teeth. Free your mind, everyone, or else recognize that we will never free our tax dollars.

Posted by: Doug B. | Oct 4, 2011 10:06:46 AM

Doug, if you'll re-read my comments, I am really not taking any position here. Just mentioning rationales and poking fun. You started off with some weak arguments, and you got (figuratively) punched in the nose. Your posts showed some sophistry (i.e., he filled out some paperwork wrong) and ignorance of the rationale for making this paperwork a crime. Now you want to debate me about the Lacey Act? Sorry. Don't feel like it.

Posted by: federalist | Oct 4, 2011 10:45:35 AM

My arguments are only weak to those who believe that the federal criminal justice hammer is the best tool to use no matter what the expense or the realities of the crime. I plainly understand the realities more than you, federalist --- and more importantly, unlike you, I am eager to have a real debate over the costs and benefits of big government federal criminal enforcement even over "sacred cows" like saving the whales from would-be profiteering dentists.

Thanks, as always, for the anonymous amusement, federalist. I am often amused by what makes your knees jerk...

Posted by: Doug B. | Oct 4, 2011 11:08:54 AM

Doug, please point to anything that I have said that shows that I believe in this prosecution. A tongue-in-cheek comment? It was a joke, lighten up, Francis.

And the argument that "gee, this guy was only filling out paperwork" is simply disingenuous. And I am not ignorant for pointing this out.

If you want to have a debate, fine, debate the Lacey Act. You just don't do it very well.

The fact is that there is a "stamp out the market" rationale for this stuff. Your comment that he didn't kill a whale shows ignorance of this. Whether you were ignorant, or simply talking out of you know where is irrelevant to me. Who knows? Who cares?

Posted by: federalist | Oct 4, 2011 11:25:10 AM

Hi Doug,

Although I probably agree that there is a better use for federal dollars than prosecuting this guy, I think there are a couple of logical errors in your reasoning.

You state: "Also, by latest estimation, there are over 1 million sperm whales and they have no natural predators. I do not think we need to worry much about sperm whale extinction these days."

I am not sure why this is relevant. Your argument should be against their inclusion in the legislation that made trading their teeth illegal, not a prosecutor upholding the law of the land.

You state: "The "tough on crime" right-wing crowd --- Bill Otis and federalist --- readily defendant federal CRIMINAL prosecutions to protect the whales, although I would bet they would be quick to attack any EPA regulations that would restrict oil drilling to protect these same whales."

This is not a good analogy. Your original post was a criticism of the PROSECUTION of a legitimately passed law by Congress, not the law itself (although i am sure you have criticisms of that as well). I suspect that both Bill and Federalist would attack the EPA regulation AND prosecute those who violated it because it is the law. What is the other option? To ignore it?

It is a slippery slope when you propose to give prosecutors enough discretion to determine which laws they want to ignore.

You will have a large group of government employees supporting your activity.

Posted by: beth | Oct 4, 2011 2:03:55 PM

Doug --

"In the end, I see all the comments to this post shows why our criminal justice system is so huge and wasteful. The "tough on crime" right-wing crowd --- Bill Otis and federalist --- readily defendant federal CRIMINAL prosecutions to protect the whales, although I would bet they would be quick to attack any EPA regulations that would restrict oil drilling to protect these same whales."

I think the EPA does over-regulate, for sure. But now, as when I was an AUSA, I think people have to obey the law until they persuade Congress to change it. The defendant here declined to do that, and is going to get stuck with the consequences, which are very likely to be a fine rather than imprisonment. I would also require him to pay the costs of the prosecution, so that the government will not lose money.

"Meanwhile, the country is going broke because anyone who questions whether this is now a good use of federal tax dollars gets attacked from both sides."

I dissent on two grounds. First, I'm not attacking; I'm disagreeing. I don't think your question is illegitimate; I just think you reach the wrong answer. Second, the country is not going broke because of this or any prosecution (or any rehab or re-entry program or federal public defender budget). It's going broke because of massive social spending, principally entitlements. The entire criminal justice system is a relative pitance.

Posted by: Bill Otis | Oct 4, 2011 2:52:47 PM

Gosh - there is so much low hanging fruit here. There are obvious reasons why the public is beginning to see the bureaucray of the justice system as part of the big government problem - translate momey. Of course the solution must come from Congress.

Posted by: beth | Oct 4, 2011 3:21:20 PM

The real target here is Congress and the person who signed the Law.

When Congress is mentally deficient, and they have been for some time, you get stupid laws that cause this kind of thread.

I have zero respect for Congress and if I were called in testify before that ignorant body, I doubt I could stand the stench.

Unfortunately, one can begin to understand why one loses respect for government and law.

Posted by: albeed | Oct 4, 2011 3:59:51 PM

I believe this discussion brought forth one of the fundamental differences between progressives and conservatives regarding justice. Conservatives tend to believe that even a misguided law should be followed until the constitutional method for overturning it occurs. Liberals tend to want to ignore a law that they can justify to be "immoral", "misguided", etc.

Posted by: TarlsQtr | Oct 4, 2011 4:24:15 PM

I am very much enjoying this dialogue, and I am especially intrigued to see the tough-on-crime types working the hardest to defend the (significant) expenditure of federal resources going after a guy who was essentially an internet middle-man in the sale of an (over?)regulated natural resource. Please understand all: My playful (and funny?) post was NOT meant as a super-serious criticism of the federal prosecutors who are duty-bound to do their jobs --- rather I was eager to encourage reflection on the costs and benefits of a CRIMINAL justice system that makes a federal case out of a regulatory offense that maybe should no longer even be an offense.)

To put some more context on the federal investment in this prosecution, consider this part of the press release I did not quote before: "The case was investigated by agents from the Law Enforcement Offices of the National Oceanic and Atmospheric Administration and U.S. Customs and Boarder Protection. The case is being prosecuted by Assistant U.S. Attorney Dave Maguire of the U.S. Attorney’s Office for the Eastern District of Virginia and Trial Attorney Gary N. Donner of the Environmental Crimes Section of the Environment and Natural Resources Division at the Department of Justice."

So we know it took at least 4 federal agents from 4 different federal offices to go after this menace (whose crime spree may have concluded more than four years ago). And I do think a big part of the problem, federalist, was the failure to fill out this permit paperwork, http://www.fws.gov/forms/3-200-43.pdf (although you may know the ins-and-outs of the Lacey Act better than I do to know whether it would have been possible for Ertel to get a permit for internet sales of this restricted commodity a decade ago).

I hope Bill is right that a big fine, forfeiture of profits, and the cost of prosecution is the punishment here. If so, we need not be troubled by our tax dollars being used to go after this guy, because the monies will be recouped. I fear, though, that this federal CRIMINAL prosecution is costing many hundreds of thousands of dollars more than Ertel likely can afford to pay. And, in the meantime, our federal tax dollars get spent to continue to support a big federal criminal justice and big federal regulatory state --- in which it apparently took at least 4 federal agents from 4 different federal offices to prosecute a guy for some illegal internet transaction.

I agree that getting Congress to change the Lacey Act --- OR BETTER YET, having these kinds of laws enforced only through CIVIL mechanism (as so many other economic matters are regulated) --- would be another way to try to deal with my cost/benefit concerns here. But I cannot help but be intrigued that there is so much affinity in these comments --- from both the left and the right --- for this prosecution to over-protect the whales' molars. (Meanwhile, as I recall, there was also some left-right consensus complaining about red-light cameras which likely actually save human lives).

I am sorry, federalist, if you do not realize I am having great fun in this thread. The usual posts about overcrowded prisons and the death penalty tend to produce such tired old debates. I am having a great time working through a new kind of libertarian cost/benefit critique of the war on scrimshaw. Soon, you can be sure, I will get back to my focus on the war on drugs.

(Speaking of the drug war, here is a news flash for TrlsQtr: federal prosecutors already have so much discretion based on broad federal laws they already HAVE TO decide which laws they need to ignore. After all, I am still waiting to see a federal prosecution of any of the hundreds of thousands of federal criminals using pot who wrongly believe they are not federal criminals just because they have a state medical marijuana card.)

Posted by: Doug B. | Oct 4, 2011 4:25:29 PM

Thanks for this - First I would like to say that no one who knows me would identify me as a liberal. I don't know if this next observation is a bit too sarcastic for my taste but - So little money and so much that needs prosecuting. Maybe if fine and forfeiture were steeper we could prosecute all who deserve it.

Incidentally, the US Department of Justice Uniform Crime Report just reported that marijuana arrests are 52% of all drug arrests in the US. There were over 800,000 arrests for marijuana last year. I don't know how many for a scrimshaw medium.

Posted by: beth | Oct 4, 2011 5:28:31 PM

Doug, the Lacey Act stuff is a debate worth having. And sarcasm is a fine debating tool, but geez Louise, you gotta set it up better.

I thought I was being funny with the "Nuke the Whales" comment . . . .

I didn't realize you weren't serious with the comment about me thinking this guy's a danger . . . .

Posted by: federalist | Oct 4, 2011 7:26:17 PM

@Supremacy Claus: Not sure if scrimshaw from beached whales is legal, but I know it's fine from fossilized mammoth/mastadon teeth. (I have some!) It is almost certainly easier to tell the difference between beached and poached whale ivory and that of long-extinct species, so it seems like a sensible line to me.

Posted by: Emily | Oct 4, 2011 9:22:17 PM

federalist, from what I've seen, a lot of federal prisoners are behind bars precisely and exclusively as the consequence of paperwork missteps.

Beth nailed it here again and again.

Posted by: John | Oct 5, 2011 9:09:49 AM

When Federalist and Bill Otis are voices of calm reason, you might start to worry. A law is in place to protect an animal threatened by commerce in an item. It the diversity of animal life etc. is something you don't care about, fine, but if some microscopic aspect of the federal budget is spent on protecting it bothers you, what other animal protection laws should local and federal governments ignore since there are better things to do?

This is bullshit I personally know this man and can vouch for his good character. Every one of the teeth that were sold by him were Pre-Ban meaning all of the teeth were taken from whales prior to the laws set in place for their protection. Any of these teeth that were sold can be tracked down by the prosicution and dated. The teeth that were sold came from the Ukraine. Any of you have any idea of how many of these teeth are in exixtance from old whaling towns in that area? the fishermen used to come back and give them to their children or throw them in a box in their basement. I have a serious problem with the character judgement set in place here. I could write you a book of all of the great, honest and good hearted things Richard has done for me over my years. He is a honest man and a good patriot who served his country in the armed forces for many years. With all of the advances in technology such as Carbon Dating I move for a time of reform in the law. This man was set example of nothing more. Put my tax dollars out there to prosicute the drug dealers and keep my children safe on the streets not to prosecute a 64 year old veteran of this country who wouldnt even violate a game law (we have hunted together since I was a child and I have never seen one unethical move on his part). Bottom line whales were not being harmed from this act the man was simply buying old junk that was laying around (as these teeth are considered to be in the Ukraine) and selling them to artist as well as keeping some scrimshaws for his own collection. There isnt one death of a whale on richards hands and had the prosicution investigated this situation further they would find that their actions here will not achieve any goal of saving whales.

Posted by: Brad R | Oct 10, 2011 10:26:27 AM

This is the problem when federal tax collected funds are used to provide law degrees and campaign money to idiots with no better things to do to "change>?" the world than write on the internet.
The whole world system is a mess, but the real problem is that greed, oorruption and capitalistic pursuits have taken the human animal completely out of the animal world in which is lives, allowing it to polute itself beyond recognition.
Our only hope as a species is for the machines to take over...

Posted by: jesatiu | Jan 25, 2012 4:23:20 AM

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